Bombay High Court
Jaishree Moha Otavnekar vs Mohas Govind Otavenkar on 12 November, 1986
Equivalent citations: AIR 1987 BOMBAY 220, (1987) 1 HINDULR 395, (1987) 2 DMC 277, (1987) MAH LJ 160, (1987) MAHLR 617
JUDGMENT
1. This appeal out of the wife's petition under the Hindu Marriage Act for divorce on the ground of cruelty physical as well as mental.
The husband does not seem to be interested incontesing this Appela He has madeit a point to remain absent consistently in spite of repeated notices form this court.
2. the petition for divorce was filed by the appellant/wife (herinafterteh petitioner for divorce on the ground of cruelty allegedly against practised by her husband (the respondent) her. In her petition, she has given various instances of physical cruelty as well as mental cruelty. In defence to the petition the respondant filed his written statement andin Para 2 of the writtn statement of made a thoroughly unwarranted allegation of adultery on the pary of the petitioner with one Shankar Balaji Dubekar. This is what he has stated is said para 2;--
"Without prejudice towhat is staded above the respondent stated that the petitioner herself inguilty of adultery with Ahankar Balaji Dubelar (40) as the Petitioner was absconding with the said Shankar Balaji Dubekar in the 1st week of Aug., 1980 when ofn 5th Aug., 1980 the petitioner was arrested and Rs. 15,000/- were recoveredf rom the petitioer and the said Shankar Balaji debekar when the were staying together for allegedly accepting monely to transfera liquor licance toPund infavour of one Pandurant Salunke. The respondnet states thatt eh said affir was published in the daily newspaper evening news on 8th Aug., 1980. At Bombal. The respodent states that the said matter is pending in the Esplanade Court, the case No being case 337/80. The aforesaid contentions are without prejudice to each other and foregoing averments."
I have mentioned above the allegations contained in the above para of the written statement are thoroughly unwarranted. I will presently mention the reason why I way that they are unwarrented and I would also point out the legal effect of the same.
3. The respondent also denied the various allegations of cruelty made by the petitionrt against him asnd no these pleadings issues were fremed by the learned judge and t he parties wernt totrial. The petitioner examined only herself. The respondent examined himself and also examined two wntinesses Ota vnekar and Chionkar.
On the basis of the evidence arguments were advnaced beforethelearned Judge and thelearned Judge was satisfied that so far as the allegations as regards the various acts of cruelty till the date of the petition were concerned they were no proved by the petitioner. However an additonal argument was advnaced before him, viz. The allegation contained in Para 2 of the written statmend filed by the respondent set out above, themselves amounded tograve mental cruelty on the party of the respondent against the petitioner/wife Reliane in that before was placed on the Judge (Vaidya, J.) of this Court , Smt. Sumanbai v. Anandrao Onkar the leanred Judge however, relied uponanother judgment of another learned single Jufge (R. A. Jahagirdar, j,.) reported in 1980 Mah Lj 391, Madanlal sharma v. Smt. Santosh Sharma as also uponthe judgment of the Delhi High Court Pushpa Rani v. Krishan Lal and the held that even though grave allegations of adultery were made bythe resondent/husband against the petitioner/wife in the written statement which could be regarded as one of the forms of mental cruelty still there was nothing in the evidence of the petitioner toshow that any agoney of mental character was suffered by her on account of those allegationns. The learned Judge seems to have taken the view that those allegations were taken by the petitoner'wife inher strides or that she had no taken mushserious notof them and that hence no serious not of the same need be taken by the court as well. Taking this view of the matter thelearned Judge dismissed the appellant's petition without order as tocosts.
4. In this Appeal the respondent remained abosetn throughtout Inview of the serious allegationns made by him agasint the wife in Para 2 of his written statement. I wondered whether he was really interested in keeping himself tied down nad and foot to the matrimonoal alliance. The learned Advocate for the appellant was, therefore, directed to give notice tohim to remain present in the Court. Even then, he remained absent. Ultimately by my order dt. 5-11-1986 I directed the office to issue notice againt himrequiring his personal presence by the Court, In spite of this notice issued by the office on the same date, viz 5-11-1986, the respondent has not cared to appear inthis Court at all I amd there fore, required to decide this appeal without hearing the view point of the respondent/ husband.
5. The allegationns of cruelty mental as well as physical relate totwo periods:--
the cruelty allegedly practised before the filing of the petition metal as well as physical; and
(b) cruelty practised upon or after the filing of the petition.
The learned judge has examined the evidence given by the petitioner/wife andhas held that it is difficult to hold theallegations of cruelty before the petition tobe proved. The learned judge has alsoheld that even assuming that some of the allegations have been proved stillthe fact the petitioner'/wife had resumed normal matrimonial relations with her husband even after those various instances of cruelty amouted to condonation of those acts of cruelty by the petitioner/ wife.
In the have examined the evidence given by the parties onthose pointes and I have also gone through the judgment of the learned Judge in theat behalf. I amd not sure that the leanred Judge's finding on all the ponts could be upheld althout I am satisfied that his findings onmost of the points will have to be accepted. Morever, there is a good deal of substance in the learned Judge's view that thepetitioer/wife must be deemed tohave condoned the various acts ofcruelty mental and physical meted out by her husbane. However, Idonot wish toexamine this aspect of the petitioner's evidence any further, because tomaymind this appeal must suceed on the ground that the allegations made by the respondent/husbond in Para 2 of the written statement are quite wanton and unarranted andinthe eyes on law inference must be raised that such allegations are bound tocause grave mental torture to the female spouse and hence the petition for divorce is ......
6. In have mentioned that the allegations made in the writtn statement arethoroughtly wanton and unwarranted Let me explain why I say so.
In the instant cas, the petition is filed by the wife for divorce on the ground of cruelty on the part of her husbane. The defence to such petition cannot be that thepetitioer/wife is living anadulterous conduct. In this connection. I am assuming for the moment that the allegation mad by the husband in that writtn statement has some foundation in truth, I hasten to add that the evidence on record justifies to such inference. All the same, I am prepared toassume that th allegation is not without fouondation question is as to whether it has any relevance. It he husband had infct pracitised cruelty against the wife the fact that thewife has been guilty of adulterious conduct would not belittle or nullify theeffect of cruelty practised by the husband. If, onth other land the allegations of cruelty made by the wife are not proved. Her petition for divorce willhave to bedismissed even if she was a paragon of virtue. This is the legal position andin spite of this position, for no rhyme or reason as it were the husbane had come out before the Court making these unqarranted allegations against his wife. He was has mentioed that this wife was arrested for some reason. It turnas out that a bailable varranrt was issued against her thebail was given by her and ultimately in the cirminal case she had beendischarged No husband even to make good the allegation In these circumstances It will have to be held that the allegations are unfounded.
7. Question then arises as to whether such allegation unfouonded ast hey turn out tobe would not result inthemetnalagony of th agravest character to the wife. No dubt this form the mental agony is ot the subject matter of the pleadings No reference tothat has been made in the petition because this cruetly is the reaction to the petition. No doubt it could have beenopen for the petitioer toamend the petition and incorporate this as an additional instance of But after allthese allmatters of legal advice. The petitioner who is evidetnly a laywoman could not have understood these rquirements of the preocedural law It there is anyremissnes inthis point it is on part of her Advocare I do not see any reason why the petitioner/wife should bevisited with the punishment an account of the remissness of her Advocate.
Morever, it is not as it that the amendment of the petition is an absoulete imperative in such matter, The fact the respondent/husband has made the above mentioned statement in this written statement is an admitted in fact hence if need not be considered tobe very much imperative to imcorporate the same in the petitioner by way of amendment all that the Court is required to see is as to whether mental toture and cruelty has resulted to the petitioner/wife by virtue of such wanton allegation or not.
Looking at the nature of evidence ledby theparties I and of he opinion that this is a case where the Court must raise an inference lof torutre and mental agony to the wife by virtue of these wanton and unwarranted allegations. To my mind it wouldhave been open for the husbane to vindicate those do allegations. But he had completely failed to do so. It may be that the wife had not stated in so many words in her pleadings that any mental agony was caused toher by virtue of those allegations. But in these matters the Court had to gio by the commonexperience of the Society and human probabilities.
8. To my mind, reliance placedby the learned Judge on the two authorities of this Court and the Delhi highCourt is not quite satisfying.
In bothe those cases the position was that it was the wife who had made allegatio agsinst the husband of adultery and it was clear form the evidence on recore that the husband the taken those allegations inthis strides. In Madanlal Sharma v. Smt Santosh Sharma, (1980 Mah Lj 391) The position was that the wife had indulged inmaking allegation of immorality againt her husband in quite an obsence language. But after appreciation of the entire evidence the Court found thaqt the husband had not taken the allegation very seriusly at all. In fact that was the case of condonation by the husband of such acts of cruely. In these circumstances it was rightly observed by the learned Judge with great respect that those allegation of immorality could not legitimately found a basis for divorce on the ground or cruelty. The Court was required to look at the conduct of the husband whenhe was at the receiving end of suchallegation and the Court found that the husband had no taken them very seriously at all had not alloswed his mental equilibrium to be perturbed by those allegations. Utimately it turned upon the evidence let by the husband and the question wasclosely connected with the questino of condonation by him of those acts assuming that those constituted a cruelty. The said decision relied upon the learned Judge, is, therefore, clearly distinguishable.
9. The next decision of the Delhi High Court is similarly distinguishable. Even in that case it was the husband against whom the wife had made husband against whom the wife had made allegation of adultery. The petition inthat case was filed by the husband for divorce on the ground of cruelty and desertion. The facts of the case were somewhat peculiar. The petitioner/husband and the respondent/wife in that case were married in 1974 and were living inthehouse of and along with the family of one Juneja and his wife Bindra Devi. This Hans raj Juneja and Binda Devi Juneja, it was alleged were treated by the husband as his parents. The wife, however, suspected that her husband was having immoral intimacy withsaid Bindra Devi. According to the husband there were constant quarrels between himself and his wife onthis accouont and inthat connection his wife had also tried to commit suicide. In view of these allegations and acts of crelty, the husband had filed thepetition for divorce after the wife left thematrimonial home. The grounds of divorce were cruelty and desertion.
In reply tothepetition the wife repeated the allegation against her husband as regards his relation with Bindra Devi But it must be noted that those allegationns were made in the context of her justification of stay away from her husband/. According to the wife her husband was in the habit of dancing doing so it caused immense humiliation tohis wife. These allegations appear tohave been repeated also in the evidence.
It was in the context of these facts and evidence that the Delhi High Court wa required to examine thequestion as tot whether those allegations made in thewritten statement and in the evidence would not give cause of divorce to the petitioner/husband on the ground of mental cruelty. While doing so, the Court examined the husband's evendanceand found that evne thout the allegations had been made against him about immorality and adulterios conduct before the filing of the petition, not one word was stated by the husband inhis evidence about themental torture that was caused to him by virtue of the allegations, In the context of thefacts and the evidence inthat case, the Delhi high Court came to the conclusion that such facts did not necessarily give rise to the inference of mental agony andmental torture. Thequestion is whether that decision is applicable onall fours to the facts of the present case.
10. As stated above while discussing the earlier decision it can be readly seen that, the Delhi Court had found that the husband had taken theentire matter in his strides The Court also found justification for the wife to mke those allegations, because she had to justify her act of staying apart. The court found some jusitification for her staying apart and it was on that account that the appeal was allowed by the High Court and the husband's petition for divorce was dismissed bythe Court.
As pointed out above in the instant case, the allegations of adultery are thoroughtly unwarranted. Theydo not advance the husband's case in inch further, whether they are proved or not. That appart, no serious attempt is made to vindicate those allegationns.
11. Coming to the question as towhether those allegation must have caused mental agont to thewife or not it could be readily seen that thepetitioner/wife had been consistently evincingher reaction to these allegations. In the petition she had stated in so many words that the husband has been quite unjustifiably suspicious about her moral character. The averments made in the petition leave no room for doubt that she was vdry much agonised by these allegations and she had asked divorce on account of the mental cruelty resultingfrom those allegationns, But as if those allegations were not enout the repondendt/husband had chosen to heap further allegation of sdultery against his wife for no rhymd orreason unmindful of the question as to whether those allegations have any relavance to the question involved in theis petition or not. In such sircumstances,. We have tosee the normalreaction of a Hindu wife. It must be borne inmind that the reaction of the womrn-fiolk to suchallegations is not the same as that the men. Till of late, the Hindus were allowed to marray as many wives as they chose and the was considered tobe quite and enexceptionable thing.That was not the position so far as the wives were concerned. The husband having a mistresw is considered insome quarters tobe thesign of his virility and capability. The wife having extea conjugal relation is condemened by the Society as a wanton thing. In case of husband, the Society look upon them permissibly whereas in the case of the wife, it is looked upon which askance. The result in that these allegations give rise to agonies in the mind of women folk ingeneral exception apart whereas in the case of the husband this need to necessarily be os. To my mind, so Courts havr got to be alive tothese facts folife. I see no reason why Court should not take judicial notice of it.
12. In this view of the matter tomaymind. The judgment of this Court (Vaidya, J) , must be deemed tobe holding the filed Inthat case, the learned Judge has held that there can be no more insulting injury to the wife that her own husbend doubting her chastity. the mental cruely resulting formsuch insult is a matter of judicial inference and I see reason why that shoul not form the basis for a decree for divorce. The is necessary with a view to avoid multiplicity of preceedings.
13. the Appeal is, there fore allowedThe decree passed by the Lower Court is set aside and the petition for divorce is decreed and the marriage between thepetitioner and the respondent is hereby dissolved by a decree for dissolution of marriage However, in the circumstances of the case, there shallbe no order as tocosts so far asthis appeal is concerned However, nothing in this order willaffect my earlier order Dt. 5-11-1986 directing the respondent/husband to pay Rs. 350/- to the petitioner/wife as that day's costs.
14. Appeal allowed.